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Rex v F.E (a pseudonym) - Sentence [2025] TOSC 37; CR 20 of 2025 (8 May 2025)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU'ALOFA REGISTRY

CR 20 of 2025

BETWEEN:
REX
-Prosecution

AND:
F. E (a pseudonym)
-Accused

SENTENCE

BEFORE: HON. LORD CHIEF JUSTICE BISHOP KC

Appearances: Mr K Tamo’ua the Crown Prosecution
Mr S Fili for the Defendant & the Defendant via AVL from ‘Eua

Date: 8 May 2025

1. THE CHARGES & BACKGROUND

1. On 27 March 2025 you pleaded guilty to the following charges;
   1. Count 1: Serious Indecent Assault contrary to section 124(1), (3) and (5) of the Criminal Offences Act when you touch the complainant’s breast without her consent in August 2024.
   2. Count 2: Serious Indecent Assault contrary to section 124(1), (3) and (5) of the Criminal Offences Act when on the 16 August 2024, two weeks later you sucked the complainant’s breasts and touched her vagina without her consent.
2. The prosecution confirmed on arraignment their position on sentencing would remain the same, I therefore dispensed with the need for additional sentencing submissions in this matter.
3. A presentence report was ordered, which I now consider alongside the indicative sentencing submissions from the Prosecution, for sentencing.
   2. PRESENTENCE REPORT
4. On 5 May 2025, a report from the Probation Office was filed where I was told further details about your family, upbringing, personal history and your version of the offending.
5. You have no known health issues, and you currently reside with your family in ‘Eua where you look after a plantation with a variety of crops.
6. You expressed remorse and regret over the offending to the Probation Officer.
7. In light of the seriousness of the offence an inevitable term of imprisonment is the recommended assessment.
   100. DISCUSSION
8. The complainant was 15 years old at the time and you took the opportunity of her parents being absent in Count 1, to engage the Complainant in some sort of massage exercise during which she felt you rubbing your hands on her breast outside her clothing until she told you to stop. That is Count 1.
9. Two weeks later again, the complainant was at home and alone and you asked her to get into the backseat of your vehicle, she refused but you insisted and taking it shortly you took her to a bush allotment where you entered a shack and she reluctantly followed, when again you asked her to massage your back during the course of which you pulled up her jacket and bra and sucked her breasts, pulled down her leggings and fondled her vagina.
10. The Complainant said she was felt pain, and you then kissed her face causing her to weep.
11. You dropped her back home and naturally she was afraid that this might happen again told her mother and you were subsequently arrested.
12. I take Count 2 as the Head Count in which a starting point of 24 months is imposed.
13. Count 1 which is a less serious offence, 18 months’ imprisonment concurrent to Count 2 although they were committed on different dates they are part of the same pattern of offending, and I must have regard to the principle of totality.
14. I reduce the sentence by 6 months in each Count to take account of your personal mitigation and further suspend the last 6 months of the sentence in Count 2 of 18 months for a period of two years on conditions.
    4. FINAL RESULT
15. For Count 2 of Serious Indecent Assault, I impose a sentence of 18 months’ imprisonment with the last 6 months suspended for 2 years on the following conditions;
    1. You must not commit any offence punishable by imprisonment
    2. You must not come into any contact the Complainant
    100. You must undertake to complete a course on sexual awareness at the direction of the Salvation Army
    4. You must live where directed by the Probation Office
    5. You must report to the Probation Office within 48 hours of your release from custody
16. For Count 1 of Serious Indecent Assault, I impose a sentence of 12 months’ imprisonment concurrent to Count 2.
17. The upshot is that you will serve 12 months in custody followed by 6 months suspended for two years on the conditions I have already mentioned.
18. This sentence is to be served at Sainai Prison in ‘Eua where the Defendant is currently present.
19. I further order that nothing in these proceedings may be published in this Kingdom or broadcasted that may lead to the identity of the Complainant pursuant to section 119 of the Criminal Offences Act.
    

HON. MALCOLM BISHOP KC
LORD CHIEF JUSTICE
NUKU’ALOFA

8 May 2025